It has since been clarified that Judge Sotomayor misspoke. She was not claiming that Latina judges are in every respect better than crusty white guys, but only that diversity creates better decision making.

There's no doubt that Presidents deciding on Supreme Court justices have always considered diversity. In the nineteenth century, it was mostly just regional diversity. In the twentieth century, there developed a Catholic, a Jewish and then a black seat on the court. In Canada, we have of course always required three judges familiar with Quebec's civil code, and everyone would like to have an aboriginal nominee with passable credentials. These things are political reality, and there is no sense of "merit" such that it could always and everywhere trump it. Anyway, Judge Sotomayor seems to have the qualifications, along with a moderate and somewhat unpredictable judicial record.

So do the liberals win this argument? No, because the very point they rely on undermines the case for strong judicial review.

There is indeed some evidence that group decision-making is improved when those involved are relatively diverse, and therefore less inclined to groupthink. However, that fact isn't necessarily good for judicial liberalism, as we have come to understand it. No matter what their race and gender, appellate justices are necessarily an undiverse bunch. They have all been indoctrinated in the folk ways of a single profession. They are all in the top decile of intelligence, with extreme workaholic tendencies and bourgeois lifestyles. They live in Ottawa or Washington. They are bowed and scraped to all day by soft-spoken advocates and keener clerks. They almost never encounter the results of their decisions, with the principal feedback they get coming from other judges and law review articles written by people with less life experience than they have.

I'm not one to glamourize either politicians or voters, but they are a more diverse bunch. If diversity's so great, maybe we should leave the big decisions to them